By Dennis Crouch
Bard Peripheral v. W.L.Gore (Fed. Cir. 2012) (on rehearing)
In an important decision, the Federal Circuit has ruled that the “objective prong” of the test for willful patent infringement is a separate question of law. Moving forward, it will be the trial court’s duty to determine whether the defendant’s actions were objectively reckless. Further, the objective prong will now be subject to de novo review on appeal.
This new system somewhat parallels the judge-determined claim construction that must occur before a jury can determine infringement. As with claim construction, this new judge-focused sub-test will likely drive results in most cases. Because it will be prior-in-time, the judicial decision on objective recklessness will filter-out many willfulness allegations before they reach the jury. And the jury, once it is told that the judge has determined the behavior objectively reckless, is likely to find any infringed patent to be willfully infringed.
Right to Jury: The right to a jury decision on the issue of willfulness already stood on shaky foundation because, by statute, the judge decides the monetary award. The changes in the law brought about here in Bard coupled with those outlined in Seagate suggest that right may now be fully eroded. Further, the decision suggests that it may be proper to treat the entire issue of willfulness as a question of law.
+ + + + +
Treble Damages: The text of the Patent Act appears to provide courts with broad power to treble any damages awarded. The statute reads that “the court may increase the damages up to three times the amount found or assessed.” Although the text offers no limitation on that power, the Federal Circuit has limited the use of enhanced damages to only apply when the adjudged infringement is found to be willful. In Seagate, the Federal Circuit defined a two-prong test for willfulness that requires clear and convincing evidence (1) “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent” and (2) that the infringer had knowledge (or should have known) of this risk.
Willfulness is a question of fact that has been traditionally decided by a jury. However, as the statute suggests, it is the judge who determines the extent of any enhanced damages (with the limit of three-times the compensatory damage award). Here, the infringer argued that a court (rather than a jury) should first decide the sub-question of whether there existed (at the time of the infringement) an objectively high-likelihood that the infringer’s action’s constituted infringement. The appellate court agreed:
After reviewing the Supreme Court’s precedent in similar contexts, as well as our own, we conclude that simply stating that willfulness is a question of fact over-simplifies the issue. While the ultimate question of willfulness based on an assessment of the second prong of Seagate may be a question of fact, Seagate also requires a threshold determination of objective recklessness. That determination entails an objective assessment of potential defenses based on the risk presented by the patent. Those defenses may include questions of infringement but also can be expected in almost every case to entail questions of validity that are not necessarily dependent on the factual circumstances of the particular party accused of infringement.
In considering the standard applicable to the objective prong of Seagate, it can be appreciated that “the decision to label an issue a ‘question of law,’ a ‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation as it is of analysis.” Miller v. Fenton, 474 U.S. 104, 113-14 (1985). When an “issue falls some-where between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” Id. at 114; see also Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996) (applying this test to determine that claim construction is best left to the judge). We believe that the court is in the best position for making the determination of reasonableness. This court therefore holds that the objective determination of recklessness, even though predicated on underlying mixed questions of law and fact, is best decided by the judge as a question of law subject to de novo review.
On remand, the district court will be required to specifically consider the question of objective recklessness.
+ + + + +
Clear and Convincing Evidence Standard for a Question of Law?: Seagate requires that objective recklessness be proven with clear and convincing evidence. As the en banc court wrote in 2007 “to establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Normally, clear-and-convincing evidence is a standard for proving facts. Here in Bard, however, the court now holds that the objective recklessness prong is a question of law. Since the panel here has no power to modify Seagate, the odd joining of these decisions is that the issue of law must still be proven by clear and convincing evidence. In a concurring opinion to the i4i decision, Supreme Court Justice Breyer wrote on this topic – noting that the clear and convincing evidence standard of proof “applies to questions of fact and not to questions of law.” The panel opinion here in Bard either did not recognize this problem or chose to ignore it. The tension here between Seagate and Bard is genuine.
+ + + + +
The majority opinion was written Judge Gajarsa (Senior Judge) and joined by Judge Linn. Judge Newman wrote in dissent and argued that there was no need for a remand because the jury willfulness determination was clearly wrong.
+ + + + +
This case has been brewing for 38 years! Initially it was an inventorship dispute that took 28 years to settle at the PTO, followed by a litigation battle for the past 8 years. The patent covers a prosthetic vascular graft used in bypass surgeries and was originally filed as an application in 1974. U.S. Patent No. 6,436,135.
I believe what you did here is what is called a strawman.
We are not arguing what Congress did choose to do.
We are not arguing what the statutes now provide.
I have already indicated that Abe and I are not talking about how the law is now.
Why are you continuing to argue that position?
The discussion is on what could be done. And why.
Clearly, “laws” of nature are tools of approximation, created by, modified by, and even sometimes discarded by Man. Is there a reason you have not recoginzed any of the comments concerning such things as phlogisten? Is it because that law of nature ruins your ideologoy about what the laws of nature are? You seem to want to cling to a rather pedestrian view when the discussion demands a more realistic view.
If you don’t want to discuss this for its merits, that is fine, but please don’t pervert the discussion by creating strawmen.
Mr. Know it all,
From Morse:
"Whoever discovers that a certain useful result will be produced, in any art, machine, manufacture, or composition of matter, by the use of certain means, is entitled to a patent for it; provided he specifies the means he uses in a manner so full and exact, that any one skilled in the science to which it appertains, can, by using the means he specifies, without any addition to, or subtraction from them, produce precisely the result he describes. And if this cannot be done by the means he describes, the patent is void. And if it can be done, then the patent confers on him the exclusive right to use the means he specifies to produce the result or effect he describes, and nothing more. And it makes no difference, in this respect, whether the effect is produced by chemical agency or combination; or by the application of discoveries or principles in natural philosophy known or unknown before his invention; or by machinery acting altogether upon mechanical principles. In either case he must describe the manner and process as above mentioned, and the end it accomplishes. And any one may lawfully accomplish the same end without infringing the patent, if he uses means substantially different from those described.Indeed, if the eighth claim of the patentee can be maintained, there was no necessity for any specification, further than to say that he had discovered that, by using the motive power of electro-magnetism, he could print intelligible characters at any distance. We presume it will be admitted on all hands, that no patent could have issued on such a specification. Yet this claim can derive no aid from the specification filed. It is outside 120*120 of it, and the patentee claims beyond it. And if it stands, it must stand simply on the ground that the broad terms above-mentioned were a sufficient description, and entitled him to a patent in terms equally broad. In our judgment the act of Congress cannot be so construed."
and, earlier they said this:
"If this claim can be maintained, it matters not by what process or machinery the result is accomplished. For aught that we now know some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff's specification. His invention may be less complicated — less liable to get out of order — less expensive in construction, and in its operation. But yet if it is covered by this patent the inventor could not use it, nor the public have the benefit of it without the permission of this patentee.Nor is this all, while he shuts the door against inventions of other persons, the patentee would be able to avail himself of new discoveries in the properties and powers of electro-magnetism which scientific men might bring to light. For he says he does not confine his claim to the machinery or parts of machinery, which he specifies; but claims for himself a monopoly in its use, however developed, for the purpose of printing at a distance. New discoveries in physical science may enable him to combine it with new agents and new elements, and by that means attain the object in a manner superior to the present process and altogether different from it. And if he can secure the exclusive use by his present patent he may vary it with every new discovery and development of the science, and need place no description of the new manner, process, or machinery, upon the records of the patent office. And when his patent expires, the public must apply to him to learn what it is. In fine he claims an exclusive right to use a manner and process which he has not described and indeed had not invented, and therefore could not describe when he obtained his patent. The court is of opinion that the claim is too broad, and not warranted by law."
Mr. Douglas, short term award? Can we give the inventor a gold star? A check from Uncle Sam in the amount $20k? What?
The statutes provide exclusive rights for making, using and selling. How does one make, use or sell the principle of a fulcrum?
We need to go beyond the mythical and the hypothetical and deal with the simple and the self evident. The law does not protect abstract concepts, but practical implementations. The law further requires us to describe and enable these embodiments. Even if the constitution might authorize congress the power to award prizes to discoverers of new principles, such as the fulcrum, congress does not have to use that power to its full scope. Congress chose to protect machines, processes (series of Acts), manufactures and compositions. Principles are none of these.
“In five or fewer sentences, please provide your understanding of the “current state” of the written matter doctrine.”
Even better, three letters to send Malcolm running up that (Sam) Hill: NAL
“contribute nothing but flailing noise”
An area that MM is expert at (from years of practice).
Why don’t you stop flailing and defend your caveat?
Remember when MM said that his caveat was so absolutely critical to a product of nature 101 ineligibility test, but couldn’t figure out how to defend that caveat when the caveat was exposed as pure malarky if you wanted to enforce a patent that existed because of the caveat?
I remember that, too. LOL.
Now different in kind is gobbledygook?
Really?
suckie: the current state of the written matter doctrine.
In five or fewer sentences, please provide your understanding of the “current state” of the written matter doctrine. Please include your understanding of how claims reciting specific instructions in a kit are to be interpreted for infringement and validity purposes.
As for what I’m “butchering”, please take Paul Morgan’s feet out of your mouth. Judge made octrines change all the time. Often they change when it is recognized that they need to be changed. Often blog commenters known as “trolls” lack the ability to comprehend these sort of trends and contribute nothing but flailing noise to otherwise interesting dicussions.
Keep shrimping, suckie.
To the extent Mayo’s claimed compositions have a substantial utility and do not read on “naturally occuring” compositions (e.g., genes that are embedded in human chromosomes, or in the chromosomes of any animal), they do not “effectively” preclude anyone from using a “product of nature,” no more than a claim to baseball bat “effectively precludes” someone from chopping down a white ash tree.
God, that’s incisive and compelling, pretty easy to remember, and impossible to refute.
Who came up with that?
Bonus two-for 1_diocy:
Butchering both the current state of the mental steps doctrine and the current state of the written matter doctrine.
How many paint chips did you eat as a child MM?
Stop with the serious misrepresentation of law
Rememeber when suckie thought that ignoring old, conventional steps in a claim was a “serious mispresentation of law” where where the only novel limitation in the claim an otherwise ineligible mental step?
I remember that, too. LOL.
Critical (and regardless of why you think it is there) was that the Hand opinion demanded that the patented item NOT be a product of nature, but rather, be different in kind.
That is gobbledygook in which only our trolls could possibly find comfort. Get ready for another 9-0 beatdown, suckie. I’m loving it already.
suckie Who put laboratories and factories inside the earth?
Probably human beings. But they too are included in “the earth and everything inside it” and so are included in “nature” as defined by YOU, suckie.
Feel free to try another definition, suckie. I never said it was going to be easy. Especially for you. Ask your mommy for help, maybe.
Bob: the presence of any mental step in a claim renders it invalid under controlling precedent and under 112, p. 6
That’s not an entirely unreasonable position, although I don’t see any harm from simply ignoring recited mental steps for infringement purposes if the positively-recited non-mental acts in the claim are novel and non-obvious, when taken as a whole. It’s not unlike ignoring the writing on a sheet of instructions, if the contents of the instructions are recited in an otherwise novel and non-obvious kit.
“This is why Learned Hand in Parke-Davis opined that the extracted adrenalin could be patented.”
That would be a seriously incorrect version of the opinion.
Critical (and regardless of why you think it is there) was that the Hand opinion demanded that the patented item NOT be a product of nature, but rather, be different in kind.
Stop with the serious misrepresentation of law.
“there is no statute that says this”
The statute doesn’t say what counts as making – it depends on what the claimed invention is.
If “the seed is the plant”, then growing a plant that has lots of seeds on it is creating lots of seeds and therefore making lots of plants.
Seeds aren’t the only thing that has making more as its “intended purpose”. Pretty much anything made by casting would do, for example. Any crystal. Any DNA. Patents have as their “intended purpose” to stop people from making more, so naturally you see the problem with your “intended purpose” argument that incidentally is not in any statute.
“the presence of any mental step in a claim renders it invalid under controlling precedent and under 112, p. 6”
Controlling precedent? Really? Not sure that the current state of the mental steps doctrine really says that.
” I think it’s fair to say that the applied processes begin where the impermissible capturing of mental steps ends.”
Nice circular reasoning. Still doesn’t cite a Court holding. But may be good for getting you into position to GFY yes?
Excuses lose debates. Evidence wins the day. You made the claim, the burden is on you to cite your evidence. You failed to do You lose.
Neither of these cases have holdings that say coverage of all useful results retards progress in the science and useful arts.
Hint: such a statement will never be in a holding. It’s conjecture and unnecessary to the merits of any decision.
You might want to mention that the industry letter points out that a product of nature exclusion jeopardizes broad areas of patentable subject matter beyond human genes that have long been considered patentable, perhaps back to the founding of the Republic.
This is true, and is consistent with Malcolm’s theories as well. There has never been in the law a product of nature exclusion. Phenomena of nature, yes — but the discussion there is equivalent to law of nature. They cases then spoke of elemental forces and causes and the like. These could not be the subject of patents. But it was long thought that one could patent a new product regardless that it as adapted from a natural product, if one could find a use for it.
This is why Learned Hand in Parke-Davis opined that the extracted adrenalin could be patented. It was extracted from animals, but even in extracted form, it was useful.
No case has ever, meaning never, held any patented invention invalid based on a product of nature theory. The theory comes from In re Latimer, an opinion of the commissioner of patents, who misinterpret two prior Supreme Court cases. Those cases though involved known compositions derived from nature. KNOWN is the key. They were prior art.
suckie: You left off the “”applied” processes begin?” part
As a first approximation, suckie, I think it’s fair to say that the applied processes begin where the impermissible capturing of mental steps ends. Read my answer again. Or have your mommy read it to you. That might help.
Second the answer you did provide was unintelligIble.
Which part didn’t you understand, suckie? Again, ask your mommy to help you. She’s upstairs helping the plumber unclog the pipes.
“ the vacuum of silence roaring your ineptitude”
Preferable to the “vacuum” of nonsense that typically roars MM’s ineptitude.
Your attempts at making things pretty are not an answer.
You do answer questions, right?
“Once that principle is disclosed, becomes part of our skill and knowledge as human beings.”
A meaningless argument, as the very same argument applies equally to items allowed to be covered by patents.
And it’s not about stopping them (which also is an argument that can, and is, used against patents in general), it’s about rewarding the person who discovers this worthwhile thing with a mere short term reward.
Face it: any argument you come up with does not work. It either applies against the patent system in its entirety or it is false.
Mr. Debate, I have quoted the relevant passages so, so, so many times, it behooves you to either read the two cases or review my quotes of the cases.
That is not a proper pin-cite of a Court holding. You just stated the names of the cases. I thought you were a practicing attorney? You should know better than that. And I thought you wanted an actual debate? Seems like you are incapable of doing either one.
“Planting the seed is no more than using it for its intended purpose”
especially in light of what the patent is
But then again, IANAE has already been told this.
Repeating straw merits only the mention that IANAE is repeating his straw spewing
IANAE, you state that if the claim it to a plant that planting the seed is making the plant. However, there is no statute that says this and the principle is contrary to nature. It is the creator of the seed that is the maker of the plant. Planting the seed is no more than using it for its intended purpose. The seed is the plant.
Armitage.
Lilly.
About says it all.
Ned: “The act of making is the act of fertilization.”
Doesn’t that depend on what the claimed invention is?
If the claim is to a plant, planting a seed is making the claimed invention. If the claim is to a seed, planting the seed is both making and using the claimed invention. If the claim is to a cell, every stage in the process is probably making the claimed invention.
Everything is “one part of a process”. Are you really making a claimed plastic widget if you start by buying the plastic? What if you buy a factory that’s already producing them?
Ned: “It therefor follows that one legally in possession of the seed of a patented plant has the legal right to use it”
But not to make more. If you use a legally purchased plastic widget to make a mold for creating more widgets in your factory, you’re infringing. Same if you use a seed to make acre after acre of new seeds. Same if you use a patented crystal to seed a larger crystal.
simple problem with this: see the challenge to MM and his caveat (the one he refuses to answer)
Memo to Malcolm;
You have a fan at Lilly. (Bob Armitage)
The Lilly brief argues that the presence of any mental step in a claim renders it invalid under controlling precedent and under 112, p. 6, that expressly limits process claims to ACTS.
link to patentdocs.org
link to docs.google.com
O'Reilly v. Morse and Gottschalk v. Benson.
Memo to Court:
You say planting a seed produced sexually from a patented plant is “making” a patented plant, an act of infringement not subject to exhaustion.
In sexual reproduction, is the planting of the fertilized egg or seed the act of making, or is it the act of fertilization that is the act of making?
In truth, I would politely suggest, that the planting of the seed or egg is one part of a process of growing the mature plant or animal from the egg or seed. The plant or animal has already been created, i.e., made. The act of making is the act of fertilization.
It therefor follows that one legally in possession of the seed of a patented plant has the legal right to use it under prevailing Supreme Court precedent.
Memo 2 to court:
If the presence of a patented composition in nature is all that is required to invalidate a patent on the composition on the principle that products of nature cannot be patented because they are legally part of the public domain:
How do you justify not invalidating all sexually reproduced plants and animals once they have been exposed to nature? The plant or animal sexually spreads into nature and becomes part of it.
The answer: there is something fundamentally wrong with the premise. In all Supreme Court precedent, bar none, the prior compositions were KNOWN, and therefor prior art. There is not a single case anywhere that has ever held a newly discovered composition of matter unpatentable on a product of nature theory. Not one.
“We can claim things very broadly without limits to particular apparatus using method claim; but in the end, the claim must still be limited to a useful result according to the Supreme Court. Otherwise, the claims covers all useful results, they say, which retards progress in science and the useful art”
Oh you wanna debate? Okay let’s go. Start with providing a citation to the exact holding that says if a process claim is not limited to a particular useful result, it covers ALL useful results, and retards progress in the science and useful arts?
Oh and please no dicta or posting your own conjecture please. Just cite the holding and we can go from there.
“It’s also going to be a 9-0 case”
LOL! And that case still will not be a validation of your whacky mental steps theory that EVERYONE in the patent community and courts completely ignore, if they even heard of it. But that won’t stop you from continuing to run around on this blog like a Mad Man shouting “9-0 suckie” “9-0”
“I was able to quote the passage from Prometheus that precisely encapsulates the reason why Prometheus’ claims and all claims in the form [oldstep]+[newthought] are ineligible”
Umm no you were able to do what you just did. Make a BS post that you have already cited the actual “holding” in Prometheus. On that your record is perfect!
But the fact remains, to date no one in the Court has heard of you whacky mental steps test theory let alone made it the law.
Now you may return to running around like a Mad Man and continue to GFY.
second attempt
end troll italics
Mr. Baby, If the exception did not result from a statute, the constitution or a prior SC decision, every statement of the exception by the SC remains dicta.
Thanks for the lecture, Mr. Pay. I do what I can with the time I have.
Mr. Douglas, perhaps we focused too much on E=MC*2. Take my example of the lever. Once that principle is disclosed, becomes part of our skill and knowledge as human beings. They might use it to make any number of different applications. So why try to stop them? It seems contrary to the logic and purpose of the patent laws to prevent progress in the useful arts.
Mr. S. A. Douglas, I do not fundamentally disagree, but that is not the law. Suppose one invents the principle of the lever. Why should he be limited to simply the particular apparatus disclosed? I think this is why method claims were allowed in the first place. We can claim things very broadly without limits to particular apparatus using method claim; but in the end, the claim must still be limited to a useful result according to the Supreme Court. Otherwise, the claims covers all useful results, they say, which retards progress in science and the useful arts.
Points to debate.
Bryson discusses Chakrabarty and assumes that one cannot patent a human gene even in isolated form because one cannot patent a newly discovered mineral, or by extension, any product of nature. I do not disagree assuming the premise, which is why I so strongly advocate reconsideration of the premise.
There is something that Bryson mentions, though, that caught me off guard, and it is this:
"At the outset, it is important to identify the inventive contribution underlying Myriad's patents. Myriad was not the first to map a BRCA gene to its chromosomal location. That discovery was made by a team of researchers led by Dr. Mary-Claire King. See Jeff M. Hall et al., Linkage of Early-Onset Familial Breast Cancer to Chromosome 17q21, 250 Science 1684 (1990). And Myriad did not invent a new method of nucleotide sequencing. Instead, it applied known sequencing techniques to identify the nucleotide order of the BRCA genes.[1]Myriad's discovery of those sequences entailed difficult work, and the identified sequences have had important applications in the fight against breast cancer. But the discovery of the sequences is an unprotectable fact, just like Dr. King's discovery of the chromosomal location of the BRCA1 gene."
Even Malcolm has agreed with me that if a compound is known, and apparently BRCA was, then one cannot patent the isolated version where the isolated version is the result of a known process. The term "isolated" is essentially a product by process limitation, and seemingly would fail to distinguish the known compound in any patentable sense if the process of isolation is conventional.
“with reference to the structural features of the natural composition and the claimed composition”
It has been already pointed out that “isolated” and “purified” are not structural terms.
And don’t forget that a one-to-one mapping si not required (we have the magic word “effectively” that we can rely on).
Try again (or in your case, for the first time).
MMGFY,
While even a fifthgrader would understand the distinction inherent in your post, that is too subtle a point for MM to understand.
You have to remember that MM is trying very hard NOT to understand this concept.
Redux:
Fools No One said in reply to IANAE…
“until you get caught with a question you can’t answer.”
LOLZ,
So says the reigning spiked-in-the-face-and-leave-the-game Calvinball champion.
Are you taking lessons from MM on how to accuse others of what you do?
Let’s see if the mouth MM can answer questions directed to him.
In other words, STFU IANAE.
Ask that of the farmers whose fields have picked up Monsanto grain.
Their act of infringement was making and selling.
“Since when is picking up an act of infringement?”
Nice straw.
You of course realize that the “free to all” aspect of nature’s warehouse encompasses much, much, much more than merely the act of picking something up.
“Since when is picking up an act of infringement?”
Ask that of the farmers whose fields have picked up Monsanto grain.
You going to enforce your patent on composition X against someone who picks up something that is in nature and free to all?
Since when is picking up an act of infringement? Is Motorola going to sue me for going to an Apple Store and picking up an iPhone to look at it?
Don’t you have a Calvinball to catch with your face?
The obvious point is that composition X is in nature, and is free to all.
You going to enforce your patent on composition X against someone who picks up something that is in nature and free to all?
The claim must be invalid.
How do you enforce your claim to composition X?
How do you usually enforce a claim? Identify an infringer, and either offer him a license or sue him for damages and an injunction.
Ditto compositions that are no more effectively than products of nature.
It is interesting to note that Ned has not included what he has stated as the pinnacle of 101 jurisprudence in this discussion: Prometheus.
Prometheus repeats and strengthens the very message (be it dicta or holding, it matters not) that Chakrabarty put forth:
A product of nature is not patent eligible. A prodcut of nature can be many things, for example (and remember, examples are just that: examples, they are not the limits or only things that are products of nature), a new mineral discovered (two points captured: new as in occuring at any time and mineral a simple composition) and another example: new plant (two points captured new as inoccurring at any time and plant, a living and thus complex item).
“If you are unable respond, then please STFU and take your pills.”
MM,
A question is put to you and you dodge, weave, insult and do everything except answer the question.
Put your money where your mouth is and address the issue pointed out to you. The issue is that your caveat of timing does not work. You wanted a caveat that the product of nature exception to 101 ineligibility would not apply to a claim (such as composition X) if that claim (and supporting application) were filed before the discovery of the product made by nature.
In the question posed to you, the product of nature is structurally the same as composition X. The only difference is timing. Your claimed X was captured in an application prior to the discovery in nature of the same X as a product of nature. Take away your inept calling of witnesses, X is a product of nature is a given in the hypothetical. This is so to show how bogus your caveat on timing is.
With your caveat, your claim cannot be rejected under 101. But that is not the key to the issue. How do you enforce your claim to composition X?
This is based on your original hypothesis, so don’t start calling those that develop it “dissemblers” and try to switch the claim to the Myriad claim. Answer the question as started by you.
As Anon says to Ned, “What you don’t say, speaks volumes. When you don’t say it, speaks volumes.” Take away your non-answers, and you have the vacuum of silence roaring your ineptitude.
Really? Who put laboratories and factories inside the earth?
“For example, where do narrowly defined “mental” processes (which produce “thinking” steps) end
Easy. If a practitioner of the prior art is not turned into a literal infringer of the [testclaim] merely because he/she performs an additional mental step, then the claim does not impermissibly capture a mental process.”
First of all you did not answer the question that was originally asked which was. where do narrowly defined “mental” processes (which produce “thinking” steps) end and “applied” processes begin?
You left off the “”applied” processes begin?” part
Second the answer you did provide was unintelligIble.
You may now GFY so more.
One can patent an application of a law of nature.
Ditto math. Ditto correlations. Ditto any abstract concept.
Now back to the beginning of the circle for you.
“until you get caught with a question you can’t answer.”
LOLZ,
So says the reigning spiked-in-the-face-and-leave-the-game Calvinball champion.
Are you taking lessons from MM on how to accuse others of what you do?
“I can only respond to the post addressed to me”
Actually this is not true at all. You can get off your duff and do what everyone else does and rad teh actual blog to see the actaul comment string instead of responding half-@ssed like you do.
It’s called common courtesy.
“confine ourself to this planet and this time”
um, because you cannot do that and have laws of nature truly universal…?
Isn’t that obvious?
You say they are universal, and the thread just showed you that they are not. In answer to the thread, you want to limit Laws of Nature to only the universal ones (and limited to this time and this part of the universe).
You have a problem with that. The problem is that the “laws of nature” are not really nature’s laws, they are tools, models made by man, with the same limitation sof exactitude and reliability than anything else made by man has. Why do you continue to ignore Abe’s reference to phlogisten?
You need to open your eyes and see things how they really are.
If such a great thing is so powerful and yet, was unknown before the patentee (and the patentee enables the scope of the claims), why not give a paltry limited term reward for such a great advance?
I’m with Abe on this.
Look at Bryson’s opinion.
Return.
Diehr was affirmed.
LOLOLOLOLOL! The zombie still walks among us.
For example, where do narrowly defined “mental” processes (which produce “thinking” steps) end
Easy. If a practitioner of the prior art is not turned into a literal infringer of the [testclaim] merely because he/she performs an additional mental step, then the claim does not impermissibly capture a mental process.
Now your turn. Here’s the question:
**where do narrowly defined “natural” processes (which produce “natural” compositions) end and “engineered” processes begin? “**
Don’t forget to consider the obvious hypothetical scenarios I’ve presented. I’ll be asking you to apply your definition in those contexts.
Thanks, suckie!
LOL.
Mr. Abstract, not really. If one patents a Law of Nature, all applications are infringements. See, O'Reilly v. Morse. Ditto math. Ditto correlations. Ditto any abstract concept.
Again, just reference O'Reilly v. Morse.
I was asking if the poster could remember whether I predicted that the SC would hold BMs ineligible, or just the claims in the Bilski application?
I really don't recall.
You do answer questions, right?
When did you stop beating your troll wife, suckie?
OK, I'm game. Give me an example on how a patent on an isolated compound can make nature infringing? Does nature make isolated compounds. Does nature sell isolated compounds. Does nature use isolated compounds?
I think not.
So, how is nature affected?
Mr. Pay, I can only respond to the post addressed to me. If it was misleading, so be it.
"Different in kind" has everything to do with Parke-Davis.
No.
Mr. Nature, why don't we stop the discussion of physics theory and confine ourself to this planet and this time. The reason laws of nature are not the subject of appropriation is that they are not the subject of legal confinement. They are universal.
Mr. Self, is it your view that Chakrabarty held there to be a product of nature exclusion?
“the claims in Bilski were ineligible”
Nothing like rewriting history.
You disappeared for months after Bilski when Diehr was affirmed.
Instead of rerunning your comments, how about actually answering the question?
You do answer questions, right?
Well in that case abstract concepts are not affected by a patent either. Right?
“ I thought the SC could come out declaring BMs excluded, but predicting it?”
Can you repeat that? It seems that dragon failed you.
suckie No, Prometheus did not hold that claims in the form [oldstep]+[newthought]
( whatever that means) were patent ineligible.
And yet Prometheus’ claims are ineligible. 9-0. And somehow I knew that. Just like I knew that the claims in KSR were obvious and the claims in Bilski were ineligible and the claims in Nuijten were ineligible and that product-by-process claims couldn’t be construed as composition claims. You want me to make some more predictions? I think there’s a claim construction case awaiting cert. You want to know how that’s going to come down? It’s also going to be a 9-0 case.
nor were you ever able to quote any holding from Prometheus that said as much
I was able to quote the passage from Prometheus that precisely encapsulates the reason why Prometheus’ claims and all claims in the form [oldstep]+[newthought] are ineligible. That’s good enough for any Earth inhabitants who aren’t braindead or in the habit of denying reality.
9-0, suckie.
By the way, suckie, hat’s your track record? Oh right — you don’t have one because all you do is troll here without ever making a coherent affirmative statement on any topic. GFY, suckie. GFY.
Also: LOL.
“nature is not affected by a patent, even theoretically‘
You forgot the word “effectively.”